IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 17, 2009
BRANDON RUIZ, PLAINTIFF,
DR. AKINTOLA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER; FINDINGS AND RECOMMENDATION
Plaintiff has filed on April 8, 2009, his second (at least) motion for temporary restraining order/preliminary injunction requesting, now, that his pain medication Tramadol be re-prescribed, but in uncrushed form. Plaintiff alleges stomach problems from taking this addictive drug in crushed form, and desires whole pills.
In his complaint filed on February 4, 2009, Ruiz related that he had undergone his most recent knee surgery, but that on return to prison he was not being given the necessary physical therapy or pain medication. The undersigned ordered the named defendants to respond to Ruiz' in-complaint request for injunctive relief. On March 6, 2009, defendants related that plaintiff was indeed receiving his physical therapy, but were silent with respect to pain medication. The undersigned then ordered further response on the pain medication on March 12, 2009. The first request for injunctive relief was denied as moot when the response indicated that plaintiff was receiving physical therapy and was again receiving pain medication, albeit in crushed form. The plaintiff then filed his injunctive relief motion at bar on April 8, 2009.
The court has received the further declaration of Dr. Sahir Naseer (April 10, 2009) in which he details plaintiff's treatment odyssey, and his firm opinion that plaintiff is way past the date on which pain medication would usually be cutoff. Plaintiff is not receiving Tramadol at this time.
Plaintiff must recognize that his claim is not one for "best medical practices," but one for deliberate indifference to a serious medical need. Therefore, injunctive relief is predicated on that standard as well. Plaintiff has produced no expert testimony to the effect that cutting off addictive medication months after the surgical event in this case is shockingly below normal standards; he has produced no expert testimony at all. Defendants have submitted the declaration of a medical doctor who does not see a problem in cutting off the pain medication at this time -- be it crushed or uncrushed. Plaintiff's request for uncrushed addictive medication, i.e., in pill form, raises the specter of manipulation or drug seeking behavior.
In any event, plaintiff's case at present rests upon the assertions of a lay prisoner versus a medical doctor. Such expressions of differences of opinion as to medical care do not state a claim under the Eighth Amendment. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). As such, plaintiff has not even raised serious questions as to the existence of a viable Eighth Amendment claim, much less demonstrated some likelihood of success. See Raich v. Gonzales, 500 F.3d 850-857-58 (9th Cir. 2007).
IT IS HEREBY ORDERED that the Clerk assign a district judge to this action; IT IS HEREBY RECOMMENDED that plaintiff's motion for a temporary restraining order/preliminary injunction (Docket # 20) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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